You are using an outdated browser.
Please upgrade your browser
and improve your visit to our site.
Skip Navigation

This Supreme Court Was Designed to Kill Climate Policies

Polluters helped build the court’s conservative majority. Would Democratic laws stand a chance against it?

Amy Coney Barrett and Vice President Mike Pence arrive at the U.S. Capitol.
Erin Schaff/Pool/Getty Images
Amy Coney Barrett and Vice President Mike Pence arrive at the U.S. Capitol.

Amy Coney Barrett, if her confirmation process goes as Republicans hope, could still be serving on the Supreme Court in 2050. By then, the United Nations estimates that anywhere between 25 million and one billion people will have been displaced by the impacts of global warming within and between countries, as large stretches of the planet become unbearably hot. Crop yields in America’s grain belt and Southwest could be decimated. The Arctic Ocean may well have been ice-free for 15 years.

Just 10 percent of the U.S. population by that point is expected to live outside of cities. Should Barrett die in office at a similar age to Ruth Bader Ginsberg, senators representing tiny and increasingly uninhabitable slivers of this country will still be empowered to confirm her replacement.

We can avoid parts of this future. But it’s getting increasingly hard to imagine doing so if today’s judiciary branch remains intact. The future Supreme Court, and the 6–3 conservative majority that now seems imminent, won’t just be empowered to overturn Roe v. Wade, as many are focusing on this week. It will also likely rule on the most important components of any prospective climate action: any new attempts by the federal government to regulate greenhouse gas emissions, for example, and the EPA’s leeway to interpret statutes like the Clean Air Act. The same anti-democratic crusade that made reasonable solutions to the climate crisis seem unimaginable has also made Barrett’s confirmation feel inevitable.

At this point, any new climate policy is likely to face the threat of a legal battle. “We know from recent history that if movements and the Democratic Party get behind the kind of legislation we need imminently to respond to climate crisis,” says Samuel Moyn, a constitutional law professor at Yale, “the judiciary can be devastating, and not just in really open ways but through interpreting the law and selectively invalidating it. To me, the struggle is about getting the Supreme Court out of the way.”

Getting climate policy through the courts, however, means going toe to toe with a decades-long project to dominate courts at every level and inject them with previously fringe ideas about the relationship between politics, government, and the economy. Dressed as constitutional originalism, the right’s focus on the judiciary has benefited not just the National Rifle Association or religious groups looking to avoid current norms toward tolerance but also business interests looking to avoid pollution controls and, for practical and ideological reasons, to wholly dismantle an administrative state that might infringe on their profits.

Charles Koch, better known for funding climate denial and efforts to kill climate policy since the 1990s, has also been a major donor to the Federalist Society, which Barrett and countless other conservative jurists have cycled through. His advocacy group Americans for Prosperity has led well-funded charges in support of all of Trump’s Supreme Court nominations, including Barrett. The same donors and dark money outfits that have funded climate denial—the Searle Freedom Trust, Sarah Scaife Foundation, and Mercer Family Foundation—have given generously to the Federalist Society, too. Right-wing donor-advised fund DonorsTrust has been a major benefactor of bodies like the Judicial Crisis Network, which organize a flood of amicus briefs to put cases in front of the Supreme Court. Seeded by a munitions and chemicals empire, the Olin Foundation has been central to the Federalist Society’s success and instrumental in backing a movement within law schools known as “law and economics,” to ensure that laws protect efficient markets above all else. In a recent Yale Law Journal article, legal scholars Jedediah Britton-Purdy, David Singh Grewal, Amy Kapczynski, and K. Sabeel Rahman describe this as a “twentieth-century synthesis” that “simultaneously recognizes and embraces the fact that law makes markets, while demanding that the satisfaction of markets becomes the aim of politics.”

Efforts to overtake economics with right-wing ideas proceeded parallel to efforts to realize those ideas through the law. The University of Chicago, George Mason University, and the University of Virginia, where Barrett taught, are some of the top examples of universities with both law schools and economics departments reflecting the “free market” ideology of men like Friedreich Hayek and James M. Buchanan. With ample funding, they created positions for right-wing legal scholars and programs that served as feeders to prestigious clerkships. (The Olin Foundation, for example, funded the fellowship position Barrett occupied at the George Washington University Law School.) Right-wing donors sponsored seminars and training aimed both at changing the ideological makeup of law schools and filling the ranks of the judiciary branch with friendly faces. A paper last year from economists Elliott Ash, Daniel Chen, and Suresh Naidu found that widely attended “Manne Seminars”—two-to-three-week boot camps starting in 1976 and funded by the Olin Foundation and corporations including Standard Oil of Ohio and U.S. Steel—substantively pushed judges’ rulings to the right. Those who attended were less likely to rule in favor of union and environmental regulations; the paper’s authors attributed between 28 and 42 percent of the rise in judicial conservatism to the seminars alone.

Law and economics has now become a core piece of the curriculum taught to first-year law students across the country, a key component of how lawyers are taught to interpret a wide range of legal questions, including on climate and the environment. A growing number of the field’s members are trying to push against that trend. Corinne Blalock is the executive director of the Law and Political Economy Project, a network of law students, lawyers, and law professors looking to challenge law and economics’ hegemony and reimagine the role of the courts in a democratic society. Well-meaning law students looking to have a positive impact on the world, she explains, are now largely guided toward public interest law, which deals in some sense with the downstream effects of rules written in more closed fields where law and economics dominates. Helping interpret or even write those rules upstream, though, is just as important as defending against their effects. “You wouldn’t have to have a radical bankruptcy professor at your school. ConLaw and poverty law and clinics are where we talk about justice. One thing we’re trying to push back on is this idea that going into bankruptcy isn’t about social justice,” Blalock tells me.

What makes the courts appealing venues for the right is what can make them a less promising venue for progressives, and climate activists in particular. The right’s judicial activism has origins in the backlash to the New Deal, wherein generations of business interests continually argued that the Roosevelt administration—bolstered by strong legislative majorities—overstepped the bounds of the Constitution. True to its origins, then, shifting the courts right has been a means of insulating the rules that govern the economy from majority rule. As with legal challenges to the Obama administration’s Clean Power Plan, courts now often check elected governments’ ability to write policy, in practice concretizing existing power imbalances or even returning to past eras when those imbalances were more stark.

One of the most powerful tools the government has to rein in emissions—the Clean Air Act—is a product of the era in which Democrats still enjoyed a strong congressional majority and the courts agreed not to intervene. A 2007 ruling in Massachusetts v. EPA further gave that agency a mandate to regulate carbon dioxide. The Supreme Court choosing to revisit that ruling—as climate deniers have long urged—could devastate efforts to avert climate catastrophe. But any number of rulings could also kneecap that authority, with some targeting the very ability of federal agencies to set and enforce any rules at all. A newly emboldened court could also threaten not just emissions reduction programs but also new power and institutions needed to build a green economy. Proposals for a Green New Deal, for example, involve industrial policy on the scale of, or even more sweeping than, the domestic economic mobilization that fueled U.S. involvement in World War II. Even Joe Biden’s more muted platform, should he follow through on it, would involve more considerable government involvement in the economy to proliferate clean energy than exists now, putting in place efficiency standards or Buy America policies that could be challenged at home and abroad.

“Part of what the climate crisis is about is decades of prioritization of extractive interests, and those are encoded in our law all over the place,” Amy Kapczynski, a professor at Yale Law School, told me. From trade and investment agreements allowing polluters to sue sovereign governments to intellectual property law that can make clean energy prohibitively expensive for poorer countries, there are any number of ways for corporations to take on government policy domestically and internationally. “There’s no symmetrical place to go to try to haul polluters or the fossil fuel industry into court. There’s no place that works similarly, where you can assert collective interest in a durable, survivable planet.” Changing that, Kapczynski adds, “will not be the product of a lawsuit. To change that is a project of a generational assertion of interest in our planet that’s greater than a certain program of resource extraction.”

If Democrats take back the Senate, and Congress is in a position to pass climate legislation next year, it could include provisions in those laws that strip the courts’ ability to challenge them—a tool used commonly by the right. “The Constitution in Article 3 gives the Congress a huge amount of authority to set up the courts and structure their jurisdiction,” Moyn says. “If Congress says the courts can’t help certain kinds of litigants, then the courts are powerless. Liberals and the left should want to use that power.” Rethinking basic legal ideology for a new generation will take more time.

Traditionally, climate has been thought about in the realm of so-called social issues, floating above supposedly meatier subjects like trade and the economy. Neither the Koch brothers nor the Federalist Society tend to see it that way, and thanks to her training, Amy Coney Barrett probably won’t, either. For the government to keep working in a warmer world and stave off its worst effects, people like Barrett will need to have less power to obstruct life-saving policy—and law schools will have to produce many fewer people like her.